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Arbitration (Amendment) Bill 1999
Amend the Arbitration Ordinance.
Enacted by the Legislative Council.
1. Short title
This Ordinance may be cited as the Arbitration (Amendment) Ordinance 1999.
2. Commencement
(1) This Ordinance, other than sections 3(a), 8, 10, 13 and 14, shall come into operation on a day to be appointed by the Secretary for Justice by notice in the Gazette.
(2) Sections 3(a), 8, 10, 13 and 14 shall be deemed to have come into operation on 1 July 1997.
(3) Subsection (2) shall be subject to Article 12 of the Hong Kong Bill
of Rights set out in Part II of the Hong Kong Bill of Rights Ordinance
(Cap. 383).
3. Interpretation
Section 2(1) of the Arbitration Ordinance (Cap. 341) is amended---
(a) in the definition of "Convention award", by repealing "Hong Kong" and substituting "China or any part thereof";
(b) by repealing the definition of "foreign award";
(c) by adding---
""the Mainland" (內地) means any part of China other than Hong Kong, Macau and Taiwan;
"Mainland award" (內地裁決) means an arbitral award made on the Mainland by a recognized Mainland arbitral authority in accordance with the Arbitration Law of the People's Republic of China;
"recognized Mainland arbitral authority" (認可內地仲裁當局) means an arbitral authority which is specified in the list of Mainland arbitral authorities provided from time to time for the purposes of this definition to the Government by the Legislative Affairs Office of the State Council of the People's Republic of China via the Hong Kong and Macau Affairs Office;".
4. Enforcement of certain foreign awards
Part III is repealed.
5. Part added
The following is added---
"PART IIIA
Enforcement of Mainland Awards
40A. Awards to which Part IIIA applies
(1) Subject to subsection (2), this Part shall have effect with respect to the enforcement of Mainland awards.
(2) Where---
(a) a Mainland award was at any time before 1 July 1997 a Convention award within the meaning of Part IV as then in force; and
(b) the enforcement of that award had been refused at any time before the commencement of section 5 of the Arbitration (Amendment) Ordinance 1999 ( of 1999) under section 44 as then in force,
then sections 40B to 40E shall have no effect with respect to the enforcement of that award.
40B. Effect of Mainland awards
(1) A Mainland award shall, subject to this Part, be enforceable in Hong Kong either by action in the Court or in the same manner as the award of an arbitrator is enforceable by virtue of section 2GG.
(2) Any Mainland award which is enforceable under this Part shall be treated as binding for all purposes on the persons between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in Hong Kong, and any references in this Part to enforcing a Mainland award shall be construed as including references to relying on a Mainland award.
40C. Restrictions on enforcement of
Mainland awards
(1) A Mainland award shall not, subject to subsection (2), be enforceable under this Part if an application has been made on the Mainland for enforcement of the award.
(2) Where---
(a) an application has been made on the Mainland for enforcement of a Mainland award; and
(b) the award has not been fully satisfied by way of that enforcement,
then, to the extent that the award has not been so satisfied, the award may be enforceable under this Part.
40D. Evidence
The party seeking to enforce a Mainland award must produce---
(a) the duly authenticated original award or a duly certified copy of it;
(b) the original arbitration agreement or a duly certified copy of it; and
(c) where the award or agreement is in a language or languages other than either or both of the official languages, a translation of it in either of the official languages certified by an official or sworn translator or by a diplomatic or consular agent.
40E. Refusal of enforcement
(1) Enforcement of a Mainland award shall not be refused except in the cases mentioned in this section.
(2) Enforcement of a Mainland award may be refused if the person against whom it is invoked proves---
(a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; or
(b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the Mainland; or
(c) that he was not given proper notice of the appointment of the arbitrator or was otherwise unable to present his case; or
(d) subject to subsection (4), that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration; or
(e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the Mainland; or
(f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the Mainland or under the law of the Mainland.
(3) Enforcement of a Mainland award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong, or if it would be contrary to public policy to enforce the award.
(4) A Mainland award which contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.
40F. Saving
Notwithstanding that enforcement of a Mainland award had been refused in Hong Kong at any time during the period between 1 July 1997 and the commencement of section 5 of the Arbitration (Amendment) Ordinance 1999 ( of 1999), the award may, subject to section 40A(2), be enforceable under this Part as if enforcement of the award had not previously been so refused.".
6. Section substituted
Section 41 is repealed and the following substituted---
"41. Awards to which Part IV applies
This Part shall have effect with respect to the enforcement of Convention awards.".
7. Saving
Section 45 is amended by repealing "or Part III".
8. Order to be conclusive evidence
Section 46 is amended by repealing "Governor" and substituting "Chief Executive".
9. Section substituted
Section 47 is repealed and the following substituted---
"47. Application of Ordinance
This Ordinance applies to and in relation to any arbitration agreement, irrespective of whether a party to the agreement is an individual, public body, public authority, private body, organ or any other class of person.".
10. Chief Executive in Council may
amend Sixth Schedule
Section 48 is amended by repealing "Governor in Council" and substituting "Chief Executive in Council".
11. Schedules repealed
The First and Second Schedules are repealed.
12. Transitional
Notwithstanding the repeal of Part III of the Arbitration Ordinance (Cap. 341) by section 4, an award to which that Part applied immediately before the commencement of that section shall be governed by the Arbitration Ordinance (Cap. 341) in force immediately before that commencement, as if this Ordinance had not been enacted.
Arbitration (Parties to New York Convention) Order
13. Schedule amended
The Schedule to the Arbitration (Parties to New York Convention) Order (Cap. 341 sub. leg.) is amended in the entry relating to "United Kingdom" by repealing ", Hong Kong".
Arbitration (Appointment of Arbitrators
and Umpires) Rules
14. Constitution of Appointment Advisory Board
Section 3(2)(a) of the Arbitration (Appointment of Arbitrators and Umpires) Rules (Cap. 341 sub. leg.) is amended by repealing "首席大法官" and substituting "終審法院首席法官".
Consequential Amendments
Rules of the High Court
15. Enforcement of settlement agreement under
section 2C of the Arbitration Ordinance or
of award under section 2GG of that Ordinance
Order 73, rule 10 of the Rules of the High Court (Cap. 4 sub. leg.) is amended---
(a) in paragraph (1)(b), by repealing "2H" and substituting "2GG";
(b) in paragraph (3)(a)---
(i) in sub-subparagraph (ii), by repealing "2H" and substituting "2GG";
(ii) in sub-subparagraph (iii)---
(A) by adding "40B(1) or" after "under section";
(B) by repealing "43" and substituting "40D or 43, as the case may be,".
Explanatory Memorandum
The main purpose of this Bill is to amend the Arbitration Ordinance (Cap. 341) to give effect to an agreement reached between the Mainland of China and the Hong Kong Special Administrative Region on the arrangement for the reciprocal enforcement of arbitral awards. The Bill also seeks to adapt the Ordinance to bring it into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.
2. Clause 3 adds new definitions to section 2(1) of the Ordinance that are necessary for the interpretation of the proposed Part IIIA of the Ordinance. The clause also makes adaptation amendments to that section.
3. Clause 5 adds a new Part IIIA to the Ordinance to provide for the enforcement in Hong Kong of arbitral awards made on the Mainland of China ("Mainland awards"). Under the proposed provisions, the practice under the New York Convention prior to the reunification of Hong Kong is preserved. New section 40B provides for the effects of Mainland awards. New section 40C prohibits concurrent enforcement of arbitral awards in both the Mainland of China and Hong Kong. New section 40D provides for the evidence that needs to be provided before seeking to enforce a Mainland award. New section 40E sets out the grounds upon which a Mainland award may be refused. New section 40F provides that a Mainland award may be enforceable under the proposed Part IIIA of the Ordinance even though enforcement of the award had been refused during the period between 1 July 1997 and the commencement of section 5 of the Arbitration (Amendment) Ordinance 1999
( of 1999).
4. Clauses 4, 6, 7, 8, 10, 11, 13 and 14 are adaptation amendments.
5. Clause 9 amends the application of the Ordinance.
6. Clauses 12 and 15 contain respectively transitional provisions and consequential amendments.
7. The Bill also provides that the adaptation amendments contained in clauses 3(a), 8, 10, 13 and 14 when passed into law shall take effect retrospectively, as from the date of the establishment of the Hong Kong Special Administrative Region.
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